Card v. Meincke — 77 N.Y. Sup. Ct. 382

Majority

p. 382

Frederick A. Card, Appellant, v. Mary M. Meincke and Another, Respondents.

Headnote

Judgment — dismissal of a complaint upon the merits.

A direction in a decision by tbe court, after a trial by tbe court without a jury, that “ judgment be entered in favor of said defendant and against said plaintiff, witb costs,” does not authorize tbe entry of a judgment dismissing tbe complaint “ upon tbe merits,” and such unauthorized insertion of tbe words “upon tbe merits " will be stricken from tbe judgment, on motion.

Appeal by the plaintiff, Frederick A. Card, from an order of the Supreme Court, made at the New York Special Term at Chambers and entered in the office of the clerk of the city and county of

p. 383

New York on the 20th day of May, 1893, denying the plaintiff’s motion to correct the judgment herein by striking out the words “ upon the merits.”

The action was tried at Special Term, before the court without a jury. The trial justice made and filed findings of fact and conclusions of law, among which was the following direction for judgment : “ I direct that judgment be entered in favor of said defendants and against said plaintiff, with costs.”

A judgment was thereupon entered by the clerk, upon motion of the defendants’' attorneys, dismissing the complaint “upon the merits,” with costs.

L. Kcvrge, for the appellant.

Hvn/fiohs do Rudolphs, for the respondents.

In an action tried before the court without a jury, the clerk can only enter a judgment in the precise words and form directed by the court in the decision filed, or upon a subsequent direction to enter, by the judge who tried the cause, of the particular judgment that is proposed to be entered. In the case at bar, the decision filed contained no such explicit directions, and certainly did not state that any judgment should be entered dismissing the complaint in this action on the merits, whatever might have been the intention of the learned judge who tried the cause. We think, therefore, that the motion should have been granted, striking out from the judgment the words “ upon the merits.”

The order appealed from should be reversed and the motion granted, with ten dollars costs of appeal and disbursements and ten dollars costs of motion.

Present — Van Brunt, P. J., Follett and Parker, JJ.

Order reversed and motion granted, with ten dollars costs of appeal and ten dollars costs of motion and disbursements.